While the individual user who actually writes and posts the defamatory story, comment, or report can always potentially be held liable for a perceived defamatory statement, the analysis is more complicated when it comes to the site or platform where the comment is posted.
In many if not most cases, the defamatory statements posted online are often in the comment, review, and social platform sections of websites. In other cases, the site itself may be populated entirely or predominately with user-generated content.
While many people feel that the site itself should be liable, the simple fact is that Section 230 of the Communications Decency Act provides broad protections to sites that host materials. This safe harbor protects the sites themselves from liability and often results in a counterclaim being filed against any company or individual who is unaware of this fact.
Does this negative content fall outside of the realm of the Right to Be Forgotten (EU) or Google’s takedown policy (US)? If so, it’s unlikely you can have the search engine de-index this result for your name. This means you will have to push down the negative Google result if you want it to stop being an issue.
What needs to be pointed out is that many people jump to this option, but don’t think about the possible downsides of requesting content removal.
For sites that do not host user-generated content and rely on a traditional editorial model or are simply the views of a single person on a personal website or a site founded for a certain purpose, traditional notions of defamation law hold true. However, potential litigants would be wise to consider the potential for collection of any judgement and furthermore their ability to prove damages.
Often times, working directly with the site is more productive to secure a removal of the offending content before significant damage can occur. Using a lawyer to facilitate these negotiations can put distance between the defamed party and the alleged defamer providing perspective and keeping discussions professional. Furthermore, an attorney can assess the situation in an unbiased matter to determine the next appropriate step to take to handle the defamation.
Pay for a service that claims to “instantly fix your negative search results”.
If the owner of the offending content refuses to take it down, you may be tempted to turn to paid removal services. Unfortunately this may be a very expensive and arduous process to removal. Often times the negotiations associated with this process can take as long as working to bury negative Google results directly. There are a number of reasons for this but the two biggest ones are time and negotiation.
Site owners tend to be protective of their content and have spent their own time or money when creating it. This is why they tend to not be very receptive to the idea of removing it. Also, most often the contact details you can find on a site are not checked frequently which means the time you have to spend simply waiting to hear back from the owner can be very long.
There are a number of businesses and “consultants” popping up all over the place who claim that they can bury negative Google results and fix your online presence practically overnight. However, if this person or company is focusing on building your brand with long-term results in mind, then they wouldn’t be making a promise that they can’t necessarily keep. The fact of the matter is, nobody can completely control Google results.
If someone says that they can fix your online reputation overnight, RUN!
In all likelihood, they are using black-hat SEO practices that try to trick search engines into quick, short-term results. While this may work for a week or two (at best), it is not a long-term solution. Your attempt to push down the negative search results will fail, and after a short period of time they will resurface. This means you will be right back where you started – but with less money.
Search engines have been battling deceptive firms that use black hat tactics for years, and are now so good at flagging the activity that it often backfires, bringing the negative Google result back into prominence.
paid social media campaign to bury something on googleOption 3. Run a paid social media campaign.
This approach should be handled with care, and used only in very specific cases.
If you have already invested time in building out your online presence, and continue to be consistently active on these sites, you will see positive changes over time – changes that can actually last. This is always the foundation we recommend initially when people want to bury negative search results.
However, if you need a little boost with a particular objective in mind – like getting more customers, increasing brand awareness or getting specific kinds of social media engagement, then perhaps you should consider a paid social media campaign.
This does not bury negative Google results directly, but if you do it the right way it can positively affect your campaign indirectly. This is an opportunity to create some traction for a specific goal that you can build on, and send additional signals to search engines that will never hurt your efforts. The idea behind a paid social media campaign should be to focus on the positive content that you are creating, your business or services so that there will be more activity geared toward the properties that you control as opposed to the negative result.
Think of it this way, if more people see your content, then there’s a greater chance that you’ll get additional links (which directly help rankings) and organic social media traction (which correlates with ranking increases).
Rely on Experienced Internet Defamation Lawyers
The attorneys of Webcide.com can fight to protect companies, brands, and individuals against online defamation. While the Internet is a powerful communication platform, the same rules regarding defamatory speech and potential civil consequences hold true. Defamatory speech that is online can result in civil liability for the poster.
We can work to remove defamatory on line postings and, when appropriate, hold all relevant parties liable. To schedule a free no-obligation initial consultation ,contact us online.
Defamation of Groups or Individual Members
Can I defame a group or class of people?
A group or class of people cannot sue for defamation. However, if a defamatory statement is made about a group or class of people and the group is small enough or the statement is presented in such a way that it is understood to refer to an individual or individuals who are members of the group or class, the individuals may have a claim.
Whether a defamatory statement identifies a particular person or persons is determined by the understanding of the recipient of the statement.
Meaning of the Communication
The meaning of a communication is what the recipient understands the meaning to be. The recipient may be incorrect in that understanding, but if the incorrect interpretation is reasonable, the recipient’s understanding of the communication is taken to be the meaning of that communication. Generally, words are construed according to the meaning a recipient typically gives them. Southard v. Forbes Inc., 588 F.2d 140 (5 Cir. 1979).
Likewise, the recipient’s understanding of the communication determines to whom the communication refers. A defamatory communication must refer to the plaintiff in order for the plaintiff to have a claim, but the reference is determined by the understanding of the recipient, not the intention of the defamer.
The full context of any communication is considered when identifying the meaning of a communication and determining whether it is defamatory.
Therefore, two statements could be identical, but if the context is different, one could be defamatory and other not. Hoffman v. Washington Post Co., 433 F.Supp. 600 (D.D.C. 1977). For example, the headline of a newspaper presents a different context than the newspaper article itself, because many people read only the headlines.
The circumstances during which a person is presented the communication may also affect the meaning of the communication and how the person understands it. An otherwise obviously defamatory statement made as a joke to a person or group of people may have been made in circumstances in which no reasonable person would have taken it seriously. In such a case, the statement would not be defamatory.
Elements of Group/Class Defamation
An individual member of a group may be defamed by a statement if:
The group or class is small enough that a reader or listener can reasonably understand that the statement refers to the plaintiff; and
The reader or listener can reasonably infer that the statement refers to the plaintiff based on the circumstances of the publication.
Although the size of the group is not defined by common law, generally plaintiffs have recovered damages when groups have included 25 or fewer people. The circumstances surrounding how the statement is presented has a significant influence on the success of such a claim. A defamatory statement alleging that “most members” of a group of 25 are guilty of bad behavior may defame the members of that group, but the same statement alleging “one member” of the group is guilty of the behavior would probably not be considered defamatory. Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952)
Damages and Defenses of Group/Class Defamation
As in any defamatory communication claim, the plaintiff may collect actual damages or prove special damages. Defamation per se still applies, in which actual damages are assumed and need not be proven in the following situations:
Allegations that harm a person’s trade, profession or professional standing;
Allegations that a person is infected with a sexually transmitted disease;
Allegations that an unmarried person is unchaste;
Allegations of criminal activity.
Defenses are consistent with any defamatory communication claim. Truth is an absolute defense. Expiration of a statute of limitations is a defense. The publisher of a defamatory statement may claim privilege if the statement was made in a court of law or involved a public figure.
The meaning of the communication—what the recipient understood it to mean—is significant when a defamation claim is tied to a group or class, because the plaintiff must be identifiable from among the members of the group. The publisher’s intention is immaterial as long as the plaintiff can prove that the communication was reasonably understood to refer to the individual members of a group small enough to be identifiable, and that the publisher was negligent in failing to anticipate such an understanding.
Defamation claims related to members of a group or class and understanding the meaning of a communication in general can be confusing.
The attorneys at Webcide.com can help you determine if you have a claim.
Can An Opinion Be Defamatory?
Labeling a statement an opinion does not automatically make it an opinion or make it safe from the possibility of it being defamatory.
If a reader or listener could reasonablyCan an opinion be considered defamatory? understand that the communication as stating a fact that could be verified, the communication will not be considered an opinion, especially if it is sufficiently derogatory to hurt the subject’s reputation. Also, a communication that is presented in the form of an opinion may be considered defamatory if it implies that the opinion is based on defamatory facts that have not been disclosed.
In other words, the fact that a statement is one’s opinion does not necessarily make one immune from a defamation lawsuit.
Expressions of Opinion
An expression of opinion may be “simple” or “mixed.” A “simple” expression of opinion is made after the facts on which the opinion is based are presented. A “mixed” expression of opinion is not accompanied by the facts. They may be implied by the speaker or assumed by those receiving the communication.
This distinction is significant in light of a Supreme Court decision that holds that an expression of opinion cannot be the basis of a defamation action. Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, 339. If an expression of opinion is based on disclosed, non-defamatory facts, an action is not supported no matter how unreasonable or derogatory the opinion is.
However, if the expression of opinion is based on undisclosed or implied facts, support of an action depends on the understanding of the recipient of the statement, since the meaning of a communication is that which the recipient reasonably understands it to be, even if he/she is mistaken in that understanding. So if the recipient reasonably believes the truth of an undisclosed or implied defamatory fact about the subject of a statement, the speaker is liable.